IN THE SUPERIOR COURT OF THE STAT E OF D ELAWARE
IN AND FOR KENT COUNTY
ROGER O. SCHNEID ER, : 
: C.A. No. 03A-09-004 WLW 
Appellant, : 
: 
v. : 
: 
UNEMPLOYMENT INSURANCE : 
APPEAL BOARD, : 
: 
Appellee. : 
Submitted: January 9, 2004 
Decided: April 30, 2004 
ORDER 
Upon Appeal of Decision of the Unemployment 
Insurance Appeal Board. Reversed and Remanded. 
Roger O. Schneider, pro se.
Ray E. Calloway Bus Service, pro se.
WITHAM, J.

Schneider v. Calloway Bus Service 
C.A. No. 03A-09-004 WLW 
April 30, 2004 

Introduction 

Before this Court is Roger Schneider’ s appeal of a decision of the 
Unemployment Insurance Appeal Board (" UIAB") finding that Mr. Schneider was 
not eligible to receive unemployment benefits because he was not unemployed. Ray 
Calloway Bus Service, Inc. (" REC" ) answered the appeal. 

Background 

Roger Schneider has been employed by REC since September 2, 2002 as a 
school bus driver. Originally he was hired as a substitute bus driver ear ning $68.00 
per day, but due to budget cuts within the state, his pay was reduced to $60.00 per 
day for the same work. When he began working for REC, he was receiving 
unemployment benefits due to the loss of a previous job in the construction business. 

In April 2003, he was offered a position as a permanent bus driver for a route in 
Clayton, Delaware. Although his pay would be reduced to $39.00 per day, it was 
an easier route than his pr evious assignments and he was told that he would be able 
to make up the difference by driving on extra trips, earning $10.00 per hour. He 
had the option of continuing as a substitute bus driver at a pay rate of $60.00 per 
day, but instead chose to accept the permanent driver position at the lower pay rate. 
At the time of the UIAB hearing, Mr. Schneider was still employed by REC as a 
driver on the Clayton bus route. 

On December 1, 2002, while employed with REC, Mr. Schneider filed for 
unemployment benefits. According to his opening brief, he was told he was eligible 
for 26 weeks of benefits at $314.00 per week. However, on April 29, 2003, a 
claims deputy concluded that he was ineligible for benefits because he was not 
" unemployed" as defined in 19 Del. C. § 3302(17).1 The claims deputy concluded 
that Mr. Schneider was ineligible for benefits beginning with the week ending 
December 14, 2002, because he was employed as a bus driver for 30 hours per 
week. However, the claims deputy did award benefits for the weeks during which 
school was closed. 

Mr. Schneider appealed the denial of benefits and the matter was then heard 
by Joseph Julian, Jr ., an Appeals Referee, on May 28, 2003. The Appeals Referee 
concluded, after hearing from Mr. Schneider and Phyllis Poore, a representative of 
REC, that Mr. Schneider was employed as a full-time driver with REC when he 
applied for benefits and thus was not eligible for unemployment benefits. In 
addition, the Appeals Referee found that Mr. Schneider voluntarily accepted the 
lower paying position as a permanent driver. Therefore, the Appeals Referee 
affirmed the decision of the claims deputy. 

 19 Del. C. § 3302(17) (2004) provides: 

"Unemployment" exists and an individual is "unemployed" in any 
week during which the individual performs no services and with 
respect to which no wages are payable to the individual, or in any 
week of less than full-time work if the wages payable to the 
individual with respect to such week are less than the individual's 
weekly benefit amount plus whichever is the greater of $10 or 50% 
of the individual's weekly benefit amount 

Mr. Schneider appealed this decision as well as a decision by the Appeals 
Referee that he repay benefits improperly received, and a hearing was conducted on 
July 16, 2003 before the Unemployment Insurance Appeals Board. The Board heard 
testimony from Mr. and Mrs. Schneider regarding the two decisions from which Mr. 
Schneider was appealing: (1) the requirement that he pay back improperly paid 
unemployment benefits from September 2002, and (2) the denial of unemployment 
benefits for which Mr. Schneider filed in December 2002. Mr. Schneider contended 
that he was eligible for unemployment benefits because his weekly pay was less than 
his unemployment benefits. The Board, however, concluded that because Mr. 
Schneider was working full-time and receiving wages, he was not unemployed as 
defined in 19 Del. C. § 3302(17). In addition, the Board agreed with the Appeals 
Referee in finding that Mr. Schneider voluntarily accepted the lower paying job. 
Therefore, the Board affirmed the decision of the Appeals Referee finding the Mr. 
Schneider was ineligible for benefits. While the Board heard testimony regarding 
Mr. Schneider’ s allegedly improper receipt of benefits in September 2002, this 
issue was not specifically addressed in their decision. 

Mr. Schneider appealed the Board’ s decision to this Court contending that 
he is eligible for unemployment benefits because he earns less than his weekly 
benefit amount and was employed only part-time until April 2003. In addition, Mr. 
Schneider contends that he should not be required to refund the benefits he received 
in September 2002, because he did not obtain them through fraud. 2 REC mailed a 
letter to the Court indicating that it did not oppose Mr. Schneider’ s appeal.3 

Discussion 

On appeal from a decision of the Unemployment Insurance Appeals Board, 
the Court must determine whether the Board’ s conclusions are free from legal err or 
and supported by substantial evidence.4 " Substantial evidence is evidence which 
affords a substantial basis of fact from which the fact in issue can be reasonably 
inferred. "5 The factual findings of the Board, " if supported by evidence and in the 
absence of fraud, shall be conclusive, and the jurisdiction of the Court shall be 
confined to questions of law." 
 
While Mr. Schneider pursued this appeal through the Division of Unemployment 
Insurance, he did not include the appeal docket number 427649 on his notice of appeal to this 
Court. In his opening brief, Mr. Schneider states that it was an oversight on his part due to his 
inexperience filing an appeal in the Superior Court. Although this was not raised in his notice of 
appeal, the Cour t will still consider this issue. 

The issue before this Court is whether the Board properly concluded that Mr. 
Schneider was employed full-time with REC.7 Although the term " full-time work" 
has not been defined in the Delaware Code, the Courts have interpreted this to mean 
not only full-time hours, but also full-time pay.8 In Weeraratne v. Unemployment 
Insurance Appeal Board, the Court concluded that although the claimant was 
working 40 hours per week on a commission basis, the fact that he earned only 
$1,000 in one year of work was overriding in determining that he was not a full-time 
employee. In Weathersby,10 the Court affirmed the Board’ s decision that the 
claimant was employed full-time when he was working a total of 37.75 to 38.5 hours 
per week between two part-time employers. The Board in that case made reference 
to the merit rules for the State of Delaware, which provide that state employees are 
considered full-time if they work at least 37.5 hours per week.11 However, the 
Court noted that this was not dispositive of what constitutes full-time work. 
The testimony before the Board indicated that Mr. Schneider was working 30 
hours per week for REC, initially earning $340.00 per week. After state budget 
cuts, Mr. Schneider’ s pay was reduced to $300.00 per week. Originally Mr. 
Schneider was hired as a substitute bus driver, but then became a permanent driver 
in April 2003. However, even when he was a substitute driver, he worked five days 
a week, according to the testimony of the REC representative. Curr ently, he works 
five days a week, making bus runs in the morning and in the afternoon. He also has 
an opportunity to drive on extra trips, earning additional money, but the opportunity 
for trips has not ar isen often. 

The Board’ s decision does not clearly set forth its reasons for concluding that 
Mr. Schneider was employed full-time. After reviewing the record there does not 
appear to be substantial evidence establishing that Mr. Schneider was performing 
full-time work for REC at the time he applied for unemployment benefits. Full-time 
work means full-time pay and full-time hours. This Court finds that working 30 
hours per week does not qualify as full-time work. Therefor e, Mr. Schneider is not 
working full-time and the Board erred in r eaching this conclusion. 

Because Mr. Schneider is not working full-time, whether he is " unemployed" 
must be determined by using the formulation set forth in 19 Del. C . § 3302(17), 
which states that one is unemployed if he or she is working less than full-time and 
the wages payable are less than the weekly benefit plus the greater of $10 or 50% 
of the weekly benefit. Here, Mr. Schneider’ s weekly benefit amount is $314.00 
and his weekly wages were $300. 00. His weekly benefit plus 50% of the weekly 
benefit totals $471.00. In sum, because $300.00 is less than $471. 00, Mr. 
Schneider meets the test of unemployment. Based upon the record before this 
Court, the Board erred as a matter of law in finding that Mr. Schneider was not 
unemployed. 

However, pursuant to 19 Del. C. § 3314, an unemployed individual still must 
meet additional requirements in order to be eligible for benefits. The Board did not 
receive evidence nor hear testimony regarding the other eligibility requirements or 
the factors which would result in disqualification from benefits set forth in 19 Del. 
C. § 3315. Therefor e, this case must be remanded to the Board for a determination 
regarding Mr. Schneider’ s eligibility to receive unemployment benefits. 

Mr. Schneider also appeals the Board’ s decision that he must repay benefits 
he received improper ly during the weeks of September 7, 14, and 21, 2002, 
pursuant to 19 Del. C. § 3325. Mr. Schneider contends that because he did not 
receive the benefits as the result of fraud, but rather mistake, he should not be 
required to refund the payments. The Board’ s decision does not specifically 
address this issue, although the Board heard testimony regarding Mr. Schneider’ s 
repayment of benefits received. 12 Presumably, the Board intended to address the 
issue in its decision when it affirmed the decision of the Appeals Referee. However, 
the record provided to the Court by the Board contains a transcr ipt of a proceeding 
before the Appeals Referee in which Mr. Schneider attempted to address the issue 
but was told by the Referee, " I don’ t want to hear about that one now."13 The 
decision of the Referee dated June 12, 2003, also does not address this issue. 

According to 19 Del. C. § 3325, if unemployment benefits are received 
improperly, whether as the result of mistake or fraud, the person who received those 
benefits must repay them. It appears from the testimony before the Board that Mr. 
Schneider acknowledged that he failed to disclose income he was receiving in 
September 2002 when he filed for unemployment benefits. Therefore, he would 
have received an amount in excess of what he was supposed to receive. Based upon 
§ 3325, Mr. Schneider is responsible for repaying any amounts he received 
improperly, even if he simply made a mistake completing the forms. However, 
because the record does not have a transcript of the proceeding before the Appeals 
Referee addressing this issue, and the Board apparently did not hear testimony 
regarding the amount Mr. Schneider must refund, the matter must be remanded to 
the Board to make a determination of the amount of improper benefits Mr. Schneider 
received in September 2002 and the amount he is required to r epay. 

Conclusion 

Based upon a review of the transcr ipt of the proceeding below, this Court 
finds that Mr. Schneider did meet the test for unemployment. Therefor e, the 
Board’ s decision finding that Mr. Schneider was not unemployed is reversed and 
the matter is remanded to the Board to make a determination with respect to the 
additional requirements for eligibility. In addition, the Board’ s decision requiring 
Mr. Schneider to repay the improper benefits he received in September 2002 is 
affirmed, but the matter is remanded to the Board to make findings regarding the 
amount Mr. Schneider must repay. 

IT IS SO ORDERED. 

/s/ William L. Witham, Jr. 
J. 
WLW/ dmh 
oc: Prothonotary 
xc: Order D istribution 
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